June 22, 1994



Mr. Mark Lagerkvist
News 12 Long Island
One Media Crossways
Woodbury, NY 11797

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, unless otherwise indicated.

Dear Mr. Lagerkvist:

As you are aware, I have received your letter of June 1 and the various related documentation. You have requested an advisory opinion concerning a denial of access to records maintained by the Suffolk County Police Department.

By way of background, the records sought relate to an incident in which an off duty New York City police officer shot and killed an individual following a confrontation. In a news release issued on April 15 by the Office of the Suffolk County District Attorney, it was stated that a Suffolk County grand jury "handed a no true bill concerning the shooting." The news release also stated that an eight day presentation was made before the grand jury in which twenty-three witnesses testified. Soon thereafter, you requested "all records available under FOIL" concerning the incident. In response to the request, you were informed that the records would be withheld based upon direction "from the District Attorney's Office advising us the records have been sealed." An appeal was made to the County Attorney, who affirmed the denial on May 16, stating that the records had been sealed pursuant to §160.50(3)(h) of the Criminal Procedure Law (CPL). In your letter and in our conversation you suggested that "since no indictment was ever filed" the cited provision "does not appear to provide a legitimate exemption to disclosure". You also forwarded a response dated June 7 to a request to the Suffolk County Police Department that you made by means of its form in which it was indicated that "[u]ntil Central Records receives a closeout report from the investigating command your case is considered open, and therefore, is unavailable." As such, there is an apparent conflict between the response by the County Attorney of May 16 and that of the Police Department on June 7.

In this regard, I offer the following comments.

Of primary significance in relation to the basis for denial offered by the County Attorney is §87(2)(a) of the Freedom of Information Law, which authorizes an agency to withhold records that "are specifically exempted from disclosure by state or federal statute." One such statute is §160.50 of the CPL. In brief, subdivision (1) of that provision states that "[u]pon the termination of a criminal action or proceeding against a person in favor of such person", a court generally must direct that records relating to the criminal action or proceeding be sealed. Except in rare circumstances, it requires that the court "shall immediately notify the Commissioner of the Division of Criminal Justice Services and the heads or all appropriate police departments and other law enforcement agencies that the action has been terminated in favor of the accused." Subdivision (3)(h) states that a criminal action or proceeding shall be considered terminated in favor of an accused "where all charges against such person are dismissed pursuant to section 190.75 of this chapter." Section 190.75 of the CPL states in subdivision (1) that:

"If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled."

If indeed records have been sealed pursuant to the provisions cited in the preceding paragraph, I would agree that they are exempted from disclosure by statute and, therefore, beyond the scope of rights conferred by the Freedom of Information Law. The issue that we discussed and which was raised with Joyce Long, Assistant County Attorney, involved your contention that there was no charge and no arrest and that, consequently, the provisions of §160.50 would not apply. Since I am not an expert with respect to the CPL, in an effort to acquire clarification on the subject, I contacted M. Dawn Herkenham, Counsel to the Division of Criminal Justice Services (DCJS). DCJS has overall responsibility regarding the maintenance of criminal history information for the state. According to Counsel, if, in her words, there was no "arrest event", i.e., neither an arraignment nor an arrest that resulted in the fingerprinting of an accused, §160.50 of the CPL would be inapplicable. Based upon her expert advice, if the person who committed the shooting was not fingerprinted, arraigned or arrested, records would not have been sealed because §160.50 of the CPL would not have applied. Further, although the response from the Police Department on June 7 may not be determinative of the matter, it does not appear that the Department had received an order to seal the records issued pursuant to §160.50.

In the event that there was no "arrest event" and §160.50 of the CPL does not apply, I believe that the basis for denial offered by the County Attorney would have been inappropriate, and the records sought would in my opinion be subject to the Freedom of Information Law. That is not to suggest that all such records must be disclosed; rather I am suggesting that the extent to which they must be disclosed would be determined on the basis of the remaining provisions of §87(2) of the Freedom of Information Law.

Assuming that the provisions of the Freedom of Information Law rather than §160.50 of the CPL are applicable, it is emphasized that the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. Since I am unfamiliar with the contents of the records in question, I cannot offer specific guidance. However, the following comments may be pertinent to an analysis of rights of access.

Perhaps most important in relation to records pertaining to a law enforcement investigation is §87(2)(e) of the Freedom of Information Law. That provision permits an agency to withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

To the extent that the records sought were compiled for law enforcement purposes, an agency may withhold them only to the extent that the harmful effects described in subparagraphs (i) through (iv) of §87(2)(e) would arise by means of disclosure. At this juncture, since the grand jury returned a "no true bill", it would appear that the investigation has ended. If that is so, neither subparagraphs (i) or (ii) of §87(2)(e) would be applicable. With respect to §87(2)(e)(iii), if the records identify confidential sources, for example, names or other identifying details could be deleted. To qualify as a confidential source, it has been held that an individual must have been given a promise of confidentiality. In a case involving records maintained by the New York City Police Department, it was held that:

"NYPD has failed to meet its burden to establish that the material sought is exempt from disclosure. While NYPD has invoked a number of exemptions with might justify its failure to supply the requested information, it has failed to specify with particularity the basis for its refusal...

"As to the concern for the privacy of the witnesses to the assault, NYPD has not alleged that anyone was promised confidentiality in exchange for his cooperation in the investigation so as to qualify as a 'confidential source' within the meaning of the statute (Public Officers Law §87[2][e][iii]" [Cornell University v. City of New York Police Department, 153 AD 2d 515, 517 (1989); motion for leave to appeal denied, 72 NY 2d 707 (1990); see also, Laureano v. Grimes, 579 NYS 2d 357, ___ AD 2d ___ (1992)]. Also of potential significance is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". Since I have no knowledge of the contents of the records, it is unclear whether that provision may be applicable. However, where appropriate, names or other identifying details could be deleted from records that would otherwise be available to protect against unwarranted invasions of personal privacy [see Freedom of Information Law, §89(2)(a)].

The remaining ground for denial of possible relevance is §87(2)(g), which enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

As in the case of provisions discussed earlier, the contents of materials falling within the scope of section 87(2)(g) represent the factors in determining the extent to which inter-agency or intra-agency materials must be disclosed or may be withheld. For example, in Ingram v. Axelrod, the Appellate Division held that:

"Respondent, while admitting that the report contains factual data, contends that such data is so intertwined with subject analysis and opinion as to make the entire report exempt. After reviewing the report in camera and applying to it the above statutory and regulatory criteria, we find that Special Term correctly held pages 3-5 ('Chronology of Events' and 'Analysis of the Records') to be disclosable. These pages are clearly a 'collection of statements of objective information logically arranged and reflecting objective reality'. (10 NYCRR 50.2[b]). Additionally, pages 7-11 (ambulance records, list of interviews) should be disclosed as 'factual data'. They also contain factual information upon which the agency relies (Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 mot for lve to app den 48 NY2d 706). Respondents erroneously claim that an agency record necessarily is exempt if both factual data and opinion are intertwined in it; we have held that '[t]he mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion' (Matter of Polansky v Regan, 81 AD2d 102, 104; emphasis added). Regardless, in the instant situation, we find these pages to be strictly factual and thus clearly disclosable" [90 AD 2d 568, 569 (1982)].

Similarly, the Court of Appeals has specified that the contents of intra-agency materials determine the extent to which they may be available or withheld, for it was held that:

"While the reports in principle may be exempt from disclosure, on this record - which contains only the barest description of them - we cannot determine whether the documents in fact fall wholly within the scope of FOIL's exemption for 'intra-agency materials,' as claimed by respondents. To the extent the reports contain 'statistical or factual tabulations or data' (Public Officers Law section 87[2][g][i], or other material subject to production, they should be redacted and made available to the appellant" (id. at 133).

In short, even though statistical or factual information may be "intertwined" with opinions, the statistical or factual portions, if any, as well as any policy or determinations, would be available, unless a different ground for denial could properly be asserted.

As you are aware, grand jury proceedings are secret (CPL, §190.25), and you indicated that your request involves Police Department and not grand jury records. While there may be some Police Department records that were used during grand jury proceedings, a recent decision indicates that such use would not remove them from the coverage of the Freedom of Information Law. As stated by the Court: "The fact that the records of the Erie County Sheriff's Department are in the temporary possession of the U.S. Attorney for presentation to a Federal Grand Jury does not warrant dismissal of this action to compel production of the records pursuant to the Freedom of Information Law" [Buffalo Broadcasting Co., Inc. v. County of Erie, 593 NYS 2d 706, ___ AD 2d ___ (1993)].

Lastly, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).

In an effort to share the preceding analysis and to obviate the necessity of engaging in litigation, a copy of this opinion will be forwarded to Suffolk County officials.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Captain Vincent Fitzgerald
Joyce D. Long